Legal translation through the distorted lens of culture: an English-Romanian case study.
The field of law and its special legal language permanently influence the lives of the members of our society. Although daily dealt with, legal language is thought to be archaic, complex, sinuous, pompous and laborious. Abounding in superfluous archaic words, Latin expressions, and exaggerative syntax constructions, Legal English illustrates the mixture of languages along centuries that has created the English language generally. For instance, in the legal field, there are currently used Latin phrases like inter alia (among others) and per se (in itself). In their turn, the Vikings brought their own linguistic contribution, introducing into the English vocabulary words such as egg, husband, law, take, knife. Following the Norman Conquest of England (1066), French became the official language of England and the Normans enriched the English legal language with words such as court, parliament, justice, sovereign, marriage, property, estate, executor and tenant. (1)
For several centuries following the Norman invasion, there were three languages used in England: English (which, in spite of being spoken by the majority of the population, it was not used in legal matters), French and Latin (almost all writing was done in these two latter languages). Although Latin remained the language of formal records and statutes, only the learned people were speaking it and, therefore, it never became the language of legal pleading or debate. The enactment of the Statute of Pleading (1356) brought new developments in the field of English legal language, since this Act stated that all legal proceedings should be in English, but recorded in Latin (however, French continued to be used in legal pleadings until the seventeenth century in some areas of the law). Along with the developments in the area of the printed word, in order to impress and to ornate their texts, some writers started to use words derived from Latin (this is how legal words such as adjacent, frustrate, inferior, legal, quiet and subscribe came to be used in legal English texts) and a Latin word order. Consequently, this multiplicity of linguistic influences contributed to the creation of a rich and diverse language, with a complex grammar and many synonyms. (2) In its turn, Romanian legal language includes a considerable body of technical vocabulary and archaic words. Similarly to English legal language, historical factors and stylistic tradition explain its present-day character, the factors influencing its evolution being of legal, historical, political and sociological nature. For instance, a lot of old phrases and words can be traced back to the Old Romanian words (aratare--proba, tocmire convenjie), Latin, numerous Paleoslavonic terms (canon--pedeapsa fizica/ tortura) (3)
2. Background: The Europeanization of Legal Language
Nowadays, due to this complexity of the legal language, frequently, a great number of the members of the public do not fully understand important documents governing their rights and obligations granted by a constitution, the opinions an decisions expressed by a court or by a tribunal, the regulations and norms embodied in a statute, or the provisions specified in a contract. Even those persons professing in the legal field may have more or less serious difficulties in understanding both the language they use and the one of their colleagues, as indicated by the great number of cases revolving around the meaning of some word or phrase. (4)
The need to clarify legal terminology and terminological differences becomes a more and more urgent issue, imposed by factors such as the context of globalization, the necessity to harmonize the legislation at the level of the European Union, the complexity of economic, social and political elements which have a deep impact on the legal field, the need of rapid and efficient resolutions of litigations, especially at international level. Moreover, a very important aspect which should be taken into consideration is that translation (especially when it comes about legal texts) is not simply a matter of linguistic transference but, as Renata Vystrcilova stated in her work, Legal English, "it is an attempt to communicate someone else's message through another language. It is an attempt to communicate one world in terms of another." (5) Therefore, for this purpose, in order to perform an effective and accurate translation, the translator has to focus on a complex, multi-aspect and multidisciplinary network of factors such as the interpretation or intended use of the translation, the facilitation of the original text, the context of situation, the rhetorical context, the communicative purpose, the textual organization, the generic knowledge. Moreover, for a pertinent and adequate translation, translators must have basic knowledge of the legal cultures and systems of the source and target languages, in order to be aware of the differences of these cultures and systems and to effectively manage the issue of terminological differences between the two languages and even the absence of equivalent concepts.
Since law is the result of the society where it functions and it cannot be strictly enframed by a set of organized rules, not only does a better understanding of a particular legal culture imply the focus on legal rules, concepts and categories, but also on customs and the social context of the respective legal system, an interdisciplinary approach being therefore imperiously necessary. There are cases where the translator has to deal with terms for which there are not terms with equivalent legal meanings in the target language. In such situations, the translator usually resorts either to neologisms or to the repetition of the word in the source language (6), accompanied by an explanatory translator's note. Other situations requiring an interdisciplinary approach and a higher degree of attention are the existence in the target language of more than one different concept for a single legal term in the source language or the existence of different meanings, for the same term, across different branches of law (such as private and public law).
Since different legal systems have been created against the background of diverse cultures (in this respect, the translation process being understood as a form of cultural interaction, where the translator replaces culture elements in functional ways and adapts the text to the culture norms of the target language (7)) in order to meet the necessities of different nations, this led to inadvertences and incongruities of a great number of legal terms and of their understanding, between various national systems. Consequently, many translation theorists agree that "absolute equivalence" is nothing more than a utopia. In this sense, for example, when discussing the fact that each legal system is the result of a particular history, culture and socio-economic principles and has its own conceptual system, Susan Sarcevic--author of plurilingual dictionaries and of several studies on legal translation theories states that "legal terminology of different legal systems is, for the most part, conceptually incongruent," (8) i.e. the quest for perfect identical concepts in many languages is a dangerously misleading, chimerical and almost infeasible one. Thus, law and legal language are social constructs and the diversity of notions used for the same process is the result of a metaphysical phenomenon. (9)
In an enlarged Europe, where the European legal instruments have to be translated into a more and more increasing number of official languages, the lack of, and the vain efforts to reach, linguistic equality lead to a lot of complex and costly problems of translation. (10) Therefore, those professing both in the legal field and in the field of legal languages should be aware of the fact that legal translation is not an approximate process focusing merely on the linguistic side, but that it implies the understanding and transposition of legal concepts, as well, from the system of the source language to the one of the target language, with the subsequent employment of elements of comparative law. Versatility, carefulness, multicultural knowledge and interdisciplinary skills are, therefore, among the indispensable instruments that a translator needs when roaming on the troubled and troubling waters of multilingual legal terminology.
Over the last years, experience has showed us that, in what concerns the domain of tortious liability, it is the result of a lobby work for harmonization delivered both by lawyers and academicians. The legislation forcing harmonization has a role of its own, performed especially through solutions provided by European Courts. The main question is whether Europeanization will be accomplished in the domain of tortious liability, and how will this be achieved, given the diversity of legal systems and procedures across Europe; moreover, it should be also taken into consideration the fact that the attempts to harmonize the definitions of legal concepts such as "damage" (i.e. pecuniary or non-pecuniary damages) or "harm" are approaches situated beyond the efforts of the legislator. (11)
History shows that, in Europe, the foundations of the law of obligations and, in particular, of tortious liability is based on a long-standing common cultural matrix. Going as far back as the heritage left by the Roman Law and the experience of the first universities in the 12th century, jus commune or usus modernuspandectarum (i.e. national law), (12) all the above are a good example of the existence of common roots in relation to compensation for damages arising from the violation of subjective rights. Despite these common roots and despite the circulation of legal ideas, the material differences are strictly linked to national needs and to the financial sources available for delivering compensation to victims.
It is important to point out that, at present, the approximation of liability rules and, in particular, the law of damages is taking place through the work of the national courts and jurisprudence, especially through "conscious or unconscious legal borrowings," through legal transplants, through confrontation and exchange of information, and as a result of cross-border litigation.
3. Lifting the Veil: the Ambiguities of Romanian Legal Vocabulary in Tortious Liability
In this article, several aspects of the new tort law will be analyzed, for its better understanding and translation. Firstly, a brief overview of the tort law provisions of the Romanian New Civil Code will be given. Secondly, a more detailed examination of Chapter IV on Civil liability of the Civil Code ("Obligations Arising from the Causing of Harm") will be provided. This chapter is composed of four parts: general principles of liability (Arts.1349-1357); compensation for harm caused to the life or health of a citizen (Arts.1387-1391); compensation for harm against health and compensation for moral harm. Many of the 46 articles in the chapter are composed of multiple sections and sub-sections. On the joint liability of two or more causers of harm (Art.1382);--On vicarious liability of several kinds (of legal persons for their employees--Art.1373; of parents for minor children -Arts.1372- animals and goods ; of those responsible for the supervision of citizens who are adjudged incompetent or of limited competence Arts.1375); on the right to seek indemnification--the right of "regress" in Romanian terminology--by the person who has been required to pay damages against the person who actually caused the harm--Art.1395); "A court may lower the amount of compensation for harm caused to a citizen with consideration of his property status, with the exception of cases when the harm was caused by intentionally committed acts."
Civil liability has two forms, namely tort and contractual liability, both being based on the principle of compensation for patrimonial or non-patrimonial damage caused by an unlawful and culpable conduct. The essence of civil liability, in both its forms, tort and contractual liability (13), consists of the idea of reparation of a damage. As soon as a legal right or a legitimate interest of a person has been harmed or infringed, by provoking a damage or harm, the author of this harm must redress it and is obliged by the law to assume responsibility for his doing. (14)
Some authors (15) state that tort law has the function of retribution, as penalty in criminal law, meaning that its goal is to protect the subject of a civil right from the negative consequences of the wrongful act. Civil law imposes upon every member of the community certain civil obligations and duties in respect of every other member in regard to their property, body integrity or reputation on the basis of Restorative Justice. This concept emphasizes the idea that justice must reconsider its attitude towards the triad criminal-victim-society, and that it has to extend the contacts with the community it serves by involving in remedying antisocial behaviors.
According to the Romanian Civil law, one must put aside such breaches of duty that involve an illegal act or criminal intent, where the criminal liability includes the civil one. In the case where liability is imposed for doing something that causes harm, the civil compensation is similar to sanctions in criminal law. Civil law, and tort liability as opposed to contractual liability, embraces a much broader set of relationships than the criminal law, having a long history of sophisticated laws, like the Hamurabi Code, the Lex Aquilia and the Corpus Iuris Civile. Thus, the principle governing the civil wrong is embodied in the Latin maxim: "damno, dolore, incommodo, calamitate, injuria" (16) that created in the Roman law the duty to exercise due care in relation with others, by acting reasonably safe, so that the other persons may not suffer an injury. Roman jurists and the Roman legal community were committed to the identification of the delineation between what is "just and what unjust," and therefore the Institutes of Justinian and other sources of Roman law reflected an endeavor to "give each man his due right," and comprise "precepts" for all Romans "Honeste vivere, alterum non laedere, suum cuique tribuere" (17) Civil law recognizes certain cases in which one person having been injured by the fault or negligence of another is entitled to recover the damage which s/he has suffered by reason of such injury. The Romanian terms "dauna," "raspundere," "cauzata pe nedrept" are built on the same Latin concept. As stated above, legal language is a silent reminder of the languages that were previously used in official documents in a specific region or country (i.e. Latin was, for centuries, lingua franca for judges and lawyers).
We can state that criminal policy, both at national and European level, in the field crime prevention has represented a basis of the politics of enforcing the public morals and serving justice and based on similar rationale, tort is a fundamental institution in civil law, in which restitution to the victim is mandatory. It articulates fairness in terms of other concepts, for example, "wrong," "loss," "responsibility," and "repair." Tort law makes corrective justice more explicit by filling out the content of these concepts. In the center of this concept is the duty of repair--the duty to pay compensatory damages--which is triggered by the wrong full breach of a general duty of non-injury. From the very beginning, a principal function of the civil justice system was to repair the harm caused to any person injured by another's careless or intentional actions, insofar as that is possible.
Under the provision of article 1359 New Civil Code., "the author of the illegal act is obliged to compensate for the caused injury even when this is a result of ,,encroachment" upon an interest of another. The 998 Article of the Former Civil Code established that ,,every human action that causes an injury to another person requires that the one that caused the injury should fix it." The legal provisions of Article 999 stated that ,,everyone is responsible not only for the damage that he caused by himself, but also for the one caused by his negligence or recklessness." Thus, civil liability in the New Civil Code exclusively envisages injury, not loss or damage, either material or moral.
A tort may be described as an extra-contractual wrong (i.e. a harm that was generated independent of contract). (18) It is clear that a legal action in compensation for a wrongful act in the limits of a contract cannot be exercised by a person who is not a party to the contract; and the same principle extends to an action of tort arising from a contract for an injury to the rights of the plaintiff in the form of an act or omission.
In the Romanian legal doctrine, torts may be divided into three classes:
--those in which a party is liable simply because s/he has done or omitted to do something that was legally required, as an infringement of right or a breach of duty;
--secondly, those in which the conduct of the wrong-doer has been unlawful only by reason of his failure to exercise proper care and skills in a specific situation;
--those where the law involves an element of moral or legal misconduct.
The legal institution of tortious liability refers to the concept of "a priori duty" that incumbents in order to respect the personality rights, property rights, and ex post is translated into the obligation to redress the harm caused by the wrongful action. Civil liability is a legal construct based on the moral duty to respect others' rights and have a socially responsible conduct. Thus, it can pledge to use moral values like social good, justice, and equity. (19) The tortious act can be established only in a macro-social relationship with the concept of reasonable person. The principle of reasonable person is a Roman legacy where the standard of conduct was bonus pater familias. (20) Thus, in order to establish in concreto that an individual is responsible for an actual harm, we take the standard of conduct of the reasonable person. Duty, negligence and recklessness are determined in abstracto, have as a guide those considerations that regulates the conduct of a prudent and reasonable man.
In his book, The Concept of Civil Wrong, Peter Birks concludes that the illicit conduct that causes damage can be defined as the breach of a legal obligation that protects the interests of another individual. He also states that the pillar of tort is not only the actual harm, the remote effect, but the breach of an extra-contractual obligation:
--the plaintiff must have suffered damages;
--the damage must have been caused by the defendant's conduct (that is, factual causation);
--the defendant's conduct must have been a proximate cause of the loss (i.e. legal causation); the defendant's conduct must have been negligent (in breach of the standard of care established by law);
--there must be a duty recognized by law to avoid this damage;
To establish the liability for tort the following elements must be proved in Romanian juridical system. Perhaps most striking is the resemblance between the U.S and the Romanian doctrinal analysis of the main conditions specific to tort liability, as the composite parts or elements of a tort:
The incidence of harm or damage; Here we must stress that damage is an essential element of the tort, and lato sensu of civil liability. In the legal doctrine it represents the negative consequence (patrimonial or non-patrimonial) suffered by a person, as the immediate result of the illicit act committed by another person. As the definition shows, the damage must be the result of the infringement of a subjective right or a legitimate interest. Evidently, the tort liability will take action in the case of damage as the consequence of breaking a subjective right (for example the breaking of any real rights, like the right to integrity, etc.)
It is questionable if the tort liability can be engaged for breaking a legitimate interest.
Illegal behavior on the part of the causer; being defined as the conduct or act that affects or breaks the legal provisions, causes an infringement of subjective rights or legitimate interests of a person are being harmed. In the former Civil Code it was stated that any act that causes damage is entitled to full compensation for harm, but in the New Civil Code article 1349 it is provided the definition of an illicit act. We can conclude that it must be a wrongful conduct.
Causal connection between the illegal behavior and the damage. In the legal doctrine this causal connection is established after a sine qua non condition, that can be translated into "but for", or necessary cause. We must be asking whether the plaintiff's injury was reasonably foreseeable. That makes the question of liability sensitive to different descriptions of that injury and hence to different descriptions of the risk created by the defendant. By acting as he did, the defendant created a risk that an injury might occur in one manner or another to someone or other.
Fault on the part of the person causing damage (displaying a mental attitude towards the illicit act that causes the damage, except when liability ensues regardless of fault); "fault" ("faute")/ mistake, in the wording of art. 1349 that ,,any person who violates, intentionally or negligently the required standard is liable to fault." (21) For "intentional" wrongs, the intentional torts of today, the requisite intent, or dolus, was provided by the defendant's desire to accomplish the act, irrespective of whether he was aware that the act constituted an invasion of the plaintiff's rights. "Culpa" was interpreted as a "violation of a duty that is imposed by law. The legal provisions state that a person is responsible even for the lightest guilt, or culpa levissima. (22)
Several problems arise from these legal provisions. As we stated before, the individual who commits a wrongful act is responsible for the ordinary consequences which are likely to result in this case. Moreover, generally speaking, he is not liable for any damage that is not the natural consequence of this conduct, unless it is shown that he knows, or has reasonable means of knowing (i.e. the liability of a professional). There is general agreement that these objectives, however imperfectly accomplished, include: returning the party who has suffered a loss to the position he enjoyed before the wrongful activity; requiring the wrongdoer to disgorge the monetary or imputed benefit derived from his actions; and by the remedy meted out, or by its example, deterring the wrongdoer and others in a similar situation from engaging in the same wrongful and injurious pursuit. Another manner of describing tort goals has been to order them as serving either goals of "corrective justice and "morality" or "efficiency and deterrence."
Therefore, if the Romanian legal language will generally adopt the use of "damage", it will put an end to the ambiguities that exist in the legal taxonomy of tort liability. Damages do not refer to a strict material or subjective loss, but to a wider notion, i.e., to the negative effect of an illicit conduct. This fundamental concept in tortious liability can be explained by the eponymous term in contractual liability. Based on "a fortiori" reasoning, it can be concluded that damages provide an extended understanding of civil liability. If the word "loss" or the word" infringement" address a specific type of repercussion, by using "damages", which can be the result of an action or inaction, the Romanian legal vocabulary has adequate means for ending the misleading use of variants of the same word. It can also stress that the immediate result of the illicit behavior can take the form of a material loss, an injury, infringement of a subjective right or violation of an interest. The French term "prejudice" has a material understanding and this causes a lot of ambiguity in abstract matters like tortious liability. The homogeneity of legal terms is not justified in this matter. The "prejudice" of the illicit conduct can also be an inaction and we find ourselves in the dangers caused by the misleading appearance of words and by the historical background of French cultural legacy. (23) As one can easily notice, the French and Romanian legal technolect are closer than any other technical French vocabulary. Given the process of bringing the European legal systems on a common ground, it is mandatory to take into account the terms used by the European Commission, which is responsible for the legal translation of official documents. (24)
NOTES AND REFERENCES
(1.) Haigh, Rupert (2009), Legal English. Second Edition, New York: Routledge Cavendish, 1.
(2.) Ibid., 2.
(3.) Botezat, Onorina, Gabriela Sarbu, Mihnea Drumea, and Ana Maria Chisega-Negrila, "Expanding Communication in Legal Matrix Vocabulary. Legal English versus Legal Romanian," Recent Advances in Applied Mathematics, 64.
(4.) Tiersma, Peter M. (1999), Legal Language. Chicago and London: the University of Chicago Press, 51.
(5.) Vystrcilova, Renata (2000), "Legal English," Acta Universitatis Palackianae Olomucensis, Facultas Philosophica 73: 96. http://publib.upol.cz/~obd/fulltext/Anglica-2/Anglica-2_07.pdf.
(6.) Onufrio, Maria Vittoria (2007), "Harmonization of European Contract Law and Legal Translation: A Role for Comparative Lawyers," in Dret, Revista para el Analisis del Derecho, University of Palermo. Barcelona, April 2007: 4.
(7.) Botezat, Onorina (2011), "The Complexity of Legal Translation: Social and Cultural Bounds Astphects", Heather Ridley, Michael Farber and Susan Hull, eds. Proceedings of the 7 World Congress on the Advancement of Scholarly Research in Science, Economics, Law and Culture. 12th March 2011, The 1st IISHSS International Conference on Law and Social Order, Constanta, Vol. II, New York: Addleton Academic Publishers, 229.
(8.) Sarcevic, Susan (1989), "Conceptual Dictionaries for Translation in the Field of Law," International Journal of Lexicography: 278.
(9.) Heikki E. Mattila, S. (2006), Comparative Legal Linguistics. Ashgate Publishing Limited, 122.
(10.) Onufrio, Maria Vittoria, op. cit., 3.
(11.) Koziol, Helmut (2008), "European Tort Law," Edited by the Institute for European Tort Law. NewYork: SpringerWien, 557-558.
(12.) Zimmermann, Reinhard (1992), The Law of Obligations, Roman Foundations of the Civilian Tradition. Cape Town: Juta & Co., 902. This basic concept, which is today central to most European legal systems, was introduced by natural jurists, in particular by Samuel von Pufendorf (Ius Naturae et Gentium, 1672) Another example of the common matrix is the well-known fact that the French Civil Code and the Burgerliches Gesetzbuch (i.e. German Civil Code) have long influenced most continental jurisdictions with respect to the law of obligations and the law of damages.
(13.) The contractual liability is defined in the obligation of a debtor to compensate the harm caused to his creditor by non-compliance, inadequate compliance and delay in fulfilling his obligations.
(14.) Dogaru, Ion and Pompili Draghici (2010), Bazele Dreptului Civil. Vol.II, Teoria generala a obligator. Bucharest: C.H. Beck, 245.
(15.) Romos,an, Ioan Dorel (2008), Vinovatia in dreptul civil roman. Bucharest: All Beck, 28.
(16.) Zimmermann, Reinhard, op. cit., 1004.
(17.) "to live justly, not to injure another and to render to each his own."
(18.) A common example in many textbooks is the negligent conduct of a carrier towards the merchandise. If, by some careless act he damages the goods entrusted to him, he will commit a breach of the contract of transport that he signed, but he is also guilty of a tort if a third party sufferers a loss. He can be liable of tort if the contract is annulled, for everyone is bound to take care that he does not damage the property of another.
(19.) Romosanu, Ioan Dorel, op.cit. 17.
(20.) Boila, Lacrima Raluca (2009), Raspunderea juridica subiectiva," Bucharest: C.H. Beck, 313.
(22.) Article 1357 paragraph 2 New Romanian Civil Code.
(23.) The terminology of Romanian civil law, still in use today, was created during preparation of the Civil Code of 1864 a direct copy of the French Civil Code Comparative legal 217.
(24.) e.g. Article 9 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products
For the purpose of Article 1, "damage" means:
(a) damage caused by death or by personal injuries; Articolul 9
In sensul articolului 1, << prejudiciu >> reprezinta: (a) prejudiciul cauzat prin deces sau leziuni corporale.
For other legal terms see Nadrag, Lavinia and Monica Bala (2009), Legal English Dictionary. Bucharest: Universitara Publishing House; "Black's Law Dictionary" 8th ed. 2004: 4644-4646.
Ovidius University, Constantza
Alina BUZARNA-TIHENEA (GALBEAZA)
Ovidius University, Constantza
Ovidius University, Constantza
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|Author:||Nadrag, Lavinia; Buzarna-Tihenea, Alina "Galbeaza"; Stan, Alina|
|Publication:||Contemporary Readings in Law and Social Justice|
|Article Type:||Case study|
|Date:||Jul 1, 2012|
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